Vijayh Singh @ Vijay Kumar vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 20.11.2007 passed in S. T. No.4/2007. Trial court convicted the appellant under

Section 302 and 307 of IPC and sentenced for imprisonment of life with fine of Rs.1,000/- in earlier count while RI five years with fine of

Rs.1,000/- in later.

Prosecution story in brief is that there was a dispute in regard to land between appellant and the deceased. On 7.11.2006 at around 9.30

O''clock in the morning appellant had reached on the spot. He was armed with Farsa. He had inflicted injuries on the head and other parts of the

body of the deceased. Appellant also chased the son of the deceased, who ran away from the spot. Other witnesses were also present. Report of

the incident was lodged by the son of the deceased at P. S. Mandla. Thereafter police conducted investigation and filed charge sheet. During trial

appellant abjured guilt and pleaded innocence. Trial Court held appellant guilty for commission of offence punishable under Section 302 and 307

of IPC and awarded the sentence as mentioned above.

Learned counsel for the appellant has submitted that witnesses are relatives of the deceased, hence their evidence is unreliable. It is further

submitted by the learned counsel for the appellant that there is no evidence that appellant had inflicted injury to the son of the deceased. Hence,

trial Court has committed error in holding the appellant guilty for commission of offence punishable under Section 307 of IPC.

Learned counsel for the State has submitted that there are eye witnesses of incident, FIR was lodged promptly. He was armed with deadly

weapon. Appellant had inflicted injuries on the body of the deceased, from the possession of the appellant a Farsa was recovered. Hence, trial

Court has rightly been held appellant guilty for commission of offence and awarded proper sentence.

Phool Chand P. W. 6 is the son of the deceased. He deposed that at around 9-10 O''clock in the morning on the date of the incident i. e. on

7.11.2006, I was at my field. My mother Halkibai, Ritiraj and Ginnidas were working in my filed. Ratidas and his wife Ginnibai have been

ploughing their filed. I was also ploughing my filed. My father was sitting there. Appellant came there, he was armed with Farsa. Appellant inflicted

injuries on my father then he had tried to inflict a blow of Farsa on me also, I sat down and saved blow. He chased me up to the distance of 100

feet. Thereafter, he returned back and he had inflicted blows on the body of the person of the deceased, when I reached on the spot my father was

died. My mother was also there. I went to the house of the village Kotwar, thereafter I lodged report at P. S. Mandla. Ex. P. 7 is merg and Ex.

P.8 is FIR. He admitted his signature on FIR. He further deposed that there was a dispute between appellant and my father about the land. We

had sowed seeds of wheat in the land, on this count there was a dispute and appellant had killed my father. In his cross-examination he deposed

that Ex.P.7 is merg, Ex.P.8 is FIR and Ex.P.2 is statement recorded under Section 161 of Cr. P. C., he deposed the fact that appellant tried to

inflict injury by Farsa at me but why this fact has not been mentioned in FIR I don''t know.

Halki Bai P. W. 7 is the wife of the deceased. She deposed that on the date of incident my husband was sitting beside me and my son was

ploughing the field. Appellant came there, he was armed with Farsa. He had inflicted injuries on the body of the deceased by Farsa, at that time my

younger daughter was in the lap of my husband. She also cried. Other children were also there, they also cried. My son who was ploughing the

field ran towards the appellant. Appellant also tried to inflict injury on the son and my son saved the same. I told the appellant not to kill my

husband. However, he ran away from the spot. Police also came on the spot.

Another witness Ginni Bai P. W. 8 deposed that I had been cutting the grass from the field. Kaliram was sitting there; he had a daughter in his

lap. I had seen that appellant was chasing Phool Chand son of the deceased and his mother was running behind him. Son of the deceased ran

away up to some distance and appellant came there. Thereafter I reached at my house. Wife of the deceased was weeping and she was crying.

Tijobai P. W. 9 deposed that I was cutting paddy and I had seen that appellant was chasing the son of the deceased and wife of the deceased

was telling the appellant not to beat and after some time I heard that wife of the deceased was weeping and saying that appellant had killed my

husband.

Ratidas P. W. 1 deposed that I had been grazing my ox. I had seen that appellant chasing Phool Chand, he was armed with Farsa. Mother of

Phool chand was also running behind them. He was telling the appellant not to inflict any injury to her son. Thereafter, appellant ran away from the

spot. Wife of the appellant told me that appellant had killed her husband-the deceased. There is no other witness of the incidence.

Shyam Das P. W.10 is the witness of seizure. He deposed that on the memorandum of the appellant a Farsa, Lungi and Shirt were seized from

the residence of the appellant by seizure memo Ex.P.6. I signed the same. He admitted his signature on the memorandum Ex.P.5. He further

deposed that police had seized plain and red earth by seizure memo Ex.P.4. I signed the same.

P. W.13 is the Dr. Arjun Singh Dhurve, who performed postmortem of the deceased. He deposed that he noticed following injuries on the

person of the body of the deceased.

VERNACULAR MATTER OMITTED

G. P. Dubey P. W. 12 deposed that I recorded merg Ex. P.7 and FIR Ex. P.8 on the information of Phool Chand. He verified the fact that he

recorded merg and FIR and signed Ex. P.7 and FIR Ex.P.8.

Virendra Singh P. W. 11 is the Investigation Officer. He deposed that I was posted as Assistant Sub Inspector at P. S. Mandla on 7.11.2006.

He further deposed that on the date of the incident he seized plain earth and red earth vide Ex. P.4. Appellant was arrested by arrest memo Ex.

P.12. On the memorandum of appellant Ex.P.5 a Farsa, Lungi and other clothes were seized from his house. Thereafter, I recorded the statements

of Nanhe Singh and Tijo Bai. Seized articles were sent to FSL.

P. W. 6 and P. W.7 are eye-witnesses. P. W.6 is the son of the deceased and P. W. 7 is wife of the deceased. Both were present on the spot

and deceased was also present on the spot. Their presence is natural because at the time of the incident son of the deceased Phool Chand P. W. 6

had been ploughing his filed. Hon''ble the Apex court in the matter of Jodhan Vs. State of Madhya Pradesh reported in (2015) 11 SCC 52 has

held as under in regard to evidence of interested witness :

First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab[8], it has been observed thus:-

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.

If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on

their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable

to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in

Rameshwar v. State of Rajasthan[9].

In the said case, it has also been further observed:-

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that

usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close

[relative] would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and

there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along

with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a

sure guarantee of truth.

In Hari Obula Reddy v. State of A.P.[10], the Court has ruled that evidence of interested witnesses per se cannot be said to be

unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully

reproduced a passage from the said authority:-

An invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material

particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful

scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently

probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.

The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied

upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and

improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court

before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who

have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their presence at the scene

of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross-examination to shake their

testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the

same as improbable or untrustworthy.

The Apex court has held that the evidence of interested witness can be relied upon, if it is found to be trustworthy and credible.

P. W. 7 P.W.8 and P. W.9 were present at the place of occurrence. They specifically deposed that they had seen the appellant who was

chasing the son of the deceased and soon after the incident wife of the deceased told that appellant had killed the deceased. From the possession

of Appellant a Farsa, Lungi and Shirt were seized and as per report of FSL blood stains were found on Farsa, Gamchha and Lungi. The report of

the incident was lodged at around 15.30 O''clock in the afternoon. In the report it has been mentioned that appellant had inflicted injuries, due to

which the deceased was died. Doctor who performed postmortem verified the fact that he noticed incised injuries on the person of the body of the

deceased, which may be caused by sharp edge weapon. Hence, this fact has been proved that the appellant caused injuries to the deceased and

due to aforesaid injuries the deceased was died.

Next question is that whether the trial Court has rightly convicted the appellant for commission of offence punishable under Section 302 of

IPC. Appellant was armed with deadly weapon Farsa. He came on the spot on the date of the incident. He chased the son of the deceased and

thereafter inflicted injuries on the vital part of the body of the deceased neck. He had inflicted other injuries also. Hence, in our opinion intention

and motive of the appellant was to murder the deceased. In such circumstances the trial court has rightly convicted the appellant for commission of

offence punishable under Section 302 of IPC and awarded proper sentence.

Next question is that whether conviction of the appellant for commission of offence punishable under Section 307 of IPC is proper or not.

Conviction of the appellant under Section 307 of IPC is based on the fact that appellant had tried to inflict injury on the son of the deceased Phool

Chand. It is a fact that there was no injury on the body of Phool Chand. Phool Chand and his mother deposed that the appellant tried to inflict

injury on Phool Chand, however, he sat down on the earth and saved himself. This fact has not been mentioned by the witness Phool Chand

himself in merg Ex. P.7 and FIR Ex.P.8. He himself admitted in his cross-examination that this fact has not been mentioned in the merg and FIR.

Even though this fact has not been mentioned in the statement of Phool Chand recorded under Section 161 of Cr. P. C., that appellant also tried to

inflict injury on him and he saved himself. Hence, statement of Phool Chand in this regard is unreliable. Hence, in our opinion, trial Court has

committed error in convicting the appellant for commission of offence punishable under Section 307 of IPC. Consequently, the appeal filed by the

appellant is partly allowed. Conviction and sentence awarded by the trial Court under Section 302 of IPC is affirmed while conviction and

sentence awarded by the trial Court against the appellant for commission of offence punishable under Section 307 of IPC is hereby set aside.

Appeal is allowed in part, as indicated above.